Americans United - Douglas Laycockhttp://www.au.org/tags/douglas-laycock
enCivil Rights Swap Meet: A Cynical Approach To Marriage Equalityhttp://www.au.org/blogs/wall-of-separation/civil-rights-swap-meet-a-cynical-approach-to-marriage-equality
<a href="/about/people/gregory-lipper">Gregory Lipper</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">Even if marriage equality would increase the number or strength of anti-discrimination protections, it takes real chutzpah to argue that same-sex couples should forfeit one set of civil rights in exchange for another.</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>Tuesday’s marriage arguments at the U.S. Supreme Court hinted at coming battles over the right of religious business owners or organizations to discriminate against gays and lesbians in contexts outside of marriage itself. Indeed, several briefs to the high court—and a few justices at oral argument—suggested that if same-sex people have a constitutional right to get married, it will be more difficult for individuals and businesses to use religion as an excuse to discriminate against same-sex people in other settings.</p><p>Among various would-be discriminators, there are commercial bakers, florists, t-shirt makers (and now even pizzerias and mechanics!) who wish to refuse service to same-sex couples (or to ceremonies involving people of the same sex). There are adoption agencies who refuse to place children with same-sex couples. Others worry not about any legal consequences, but that more people will disapprove of anti-gay discrimination if the law requires marriage equality.</p><p>These arguments come in different stripes. Some amici (such as <a href="http://sblog.s3.amazonaws.com/wp-content/uploads/2015/03/14-556tsacLaycock.pdf">Professor Douglas Laycock</a>) argue that the court should recognize a constitutional right to marriage equality, but that the court should pair that right with religious exemptions to laws prohibiting discrimination against same-sex couples. Others (such as <a href="http://www.adventistreview.org/assets/public/news/2015-03/brief.pdf">the Becket Fund for Religious Liberty</a>, a Religious Right group) purport to take no position on marriage equality but, reading the writing on the wall, urge the court to require exemptions from antidiscrimination law if the court does rule in favor of marriage equality. Still others (including <a href="http://sblog.s3.amazonaws.com/wp-content/uploads/2015/04/214-57114-574bsacUnitedStatesConferenceofCatholicBishops.pdf">the U.S. Conference of Catholic Bishops</a>, and certain other <a href="http://sblog.s3.amazonaws.com/wp-content/uploads/2015/04/14-556_Major_Religious_Organizations.pdf">religious organizations</a> and <a>individuals</a>) argue that the court should refuse to recognize a constitutional right to marriage equality because marriage equality will make it more difficult to discriminate elsewhere.</p><p>Some, like the Becket Fund, even argue that “giving recognition to civil same-sex marriage <em>without</em> providing religious accommodations demonstrates animus towards religious people and institutions.” In other words, the discriminators are being discriminated against if they are no longer allowed to discriminate.</p><p>On the one hand, it’s understandable that those seeking religious exemptions from antidiscrimination law would use the Supreme Court marriage cases to try and get them. That said, their concerns are misplaced, for several reasons.</p><p>First, there is no risk that either the Constitution or civil-rights statutes would force clergy or churches to perform or host wedding ceremonies that violate their religious beliefs. In response to Justice Antonin Scalia’s suggestion to the contrary, “<a href="http://live.scotusblog.com/Event/Live_blog_Obergefell_v_Hodges/160781010">Justice Kagan reminded the Court that many rabbis refuse to perform weddings between Jews and gentiles, even though there has long been a prohibition against religious discrimination</a>.” Everyone agrees that the Free Exercise Clause prevents the government from forcing ministers to perform certain types of wedding ceremonies.</p><p>Second, more and more places will prohibit discrimination on the basis of sexual orientation whether or not same-sex couples have the right to get married. In response to questioning at oral argument, U.S. Solicitor General Donald Verrilli (who joined the plaintiffs in arguing that the Constitution requires marriage equality) pointed out that concerns about religious objections to discrimination law arise even in non-marital ceremonies. He cited a <a href="http://www.scotusblog.com/case-files/cases/elane-photography-llc-v-willock/">New Mexico case</a> in which a commercial photographer refused to provide service to a same-sex couple’s commitment ceremony—that is, not a wedding. The New Mexico Supreme Court refused to exempt the commercial photographer from anti-discrimination law, and the U.S. Supreme Court declined to hear the case.</p><p>This case from New Mexico highlights that attempts to use religion to justify discrimination can and will arise whether or not same-sex couples can get married. As we explained in <a href="https://au.org/files/pdf_documents/14-556_tsac_AmericansUnited.pdf">AU’s friend-of-the-court brief</a>, “[t]he Court’s recognition of a right to marry will not automatically extend or alter any protections for same-sex couples currently available under federal or state antidiscrimination laws.”</p><p>Finally, even if marriage equality would increase the number or strength of anti-discrimination protections, it takes real chutzpah to argue that same-sex couples should forfeit one set of civil rights in exchange for another. Gays and lesbians have experienced a brutal history of discrimination: until recently, they could not serve in the military (let alone serve openly) or, in many places, adopt children.</p><p>Until 2003, states could and did criminalize sexual activity between same-sex people. In many states, it is still legal to discriminate against gays and lesbians in hiring and public accommodations. It would be an odd interpretation of the Constitution to suggest that gays and lesbians must be prohibited from marrying in order to ensure that they can be discriminated against more easily in other settings. Consider an analogy: if for hundreds of years Christians had been barred from attending church or reading the Bible, nobody would argue that they should gain those free exercise rights only if they were willing to be discriminated against in other contexts.</p><p>There’s also another parallel with <a href="https://www.au.org/blogs/wall-of-separation/deja-vu-all-over-again-religious-objections-to-interracial-marriage-and">bans on interracial marriage</a>. Many people held strong religious objections to marriage between two members of different races when the Supreme Court decided, in <em>Loving v. Virginia</em>, that miscegenation bans violated the Equal Protection Clause. But there was no quid pro quo: the court didn’t say that Mildred and Richard Loving could marry only if bakers and florists gained the right to refuse to provide service for the Loving wedding. On the contrary, just a few years later, the Supreme Court ruled unanimously that a free exercise justification for maintaining segregated lunch counters was “<a href="http://thinkprogress.org/justice/2015/04/06/3643048/indianas-gay-rights-fight-grow-generational-defeat-christian-right/">patently frivolous</a>.”</p><p>Gays and lesbians deserve to be treated as full citizens. Like other citizens, they are entitled to <a href="http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2015/04/gay_marriage_arguments_at_supreme_court_anthony_kennedy_on_dignity.html">the dignity of marriage</a>. And like other citizens, they shouldn’t have to barter some of their civil rights in exchange for others.</p><p><em>Greg Lipper is senior litigation counsel at Americans United. Follow him on Twitter at @theglipper.</em></p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/marriage">Marriage</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span>, <span class="field-item"><a href="/tags/donald-verrilli">Donald Verrilli</a></span>, <span class="field-item"><a href="/tags/becket-fund">Becket Fund</a></span>, <span class="field-item"><a href="/tags/douglas-laycock">Douglas Laycock</a></span>, <span class="field-item"><a href="/tags/us-conference-of-catholic-bishops">US Conference of Catholic Bishops</a></span>, <span class="field-item"><a href="/tags/loving-v-virginia">Loving v. Virginia</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span>, <span class="field-item"><a href="/tags/obergefell-v-hodges">Obergefell v Hodges</a></span></div></div>Thu, 30 Apr 2015 14:23:14 +0000Simon Brown11066 at http://www.au.orghttp://www.au.org/blogs/wall-of-separation/civil-rights-swap-meet-a-cynical-approach-to-marriage-equality#commentsHigh Noon At The High Court: Justices Hear Arguments In Town Of Greece v. Galloway Casehttp://www.au.org/blogs/wall-of-separation/high-noon-at-the-high-court-justices-hear-arguments-in-town-of-greece-v
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>I spent a frantic morning at the U.S. Supreme Court, where Americans United’s challenge to government-sponsored sectarian prayer, <em>Town of Greece v. Galloway</em>, was argued.</p><p>I wasn’t inside the court for the argument, but AU Executive Director Barry W. Lynn, Legal Director Ayesha N. Khan and several other AU staff members were. They reported a spirited session, with both sides being peppered with questions from the justices.</p><p>Justice Anthony M. Kennedy tends to be the swing voter in church-state cases. Kennedy <a href="http://abcnews.go.com/Politics/wireStory/supreme-court-hears-case-legislative-prayer-20799734">closely questioned</a> Douglas Laycock, a University of Virginia law professor who argued the case for Americans United, and Thomas Hungar, a Washington, D.C., attorney who works with the Alliance Defending Freedom, a Religious Right legal group that is representing the town of Greece.</p><p>At a press conference on the steps of the Supreme Court after the argument, both Laycock and Hungar refused to predict which way the court might rule. Both pointed out that it can be dicey to read too much into an oral argument or assume things based on a certain line of questioning from the justices.</p><p>Having said that, I do have to give some props to Justice Elena Kagan, who led off with a great question. Kagan recited a long, highly sectarian prayer and asked Hungar if it would be permissible to open a court session with that type of supplication. With one question, Kagan made it clear what this case is really all about: the ability of Americans to interact with government without first being required to take part in an act of religious worship.</p><p>Laycock underscored that idea during the press conference afterward. “We are here,” he said, “to support the right of citizens to participate in local government without having to take part in someone else’s religious worship.”</p><p>Plaintiffs Susan Galloway and Linda Stephens also spoke, bringing a personal dimension to the case.</p><p>“I feel that my town has aligned itself with Christianity,” said Galloway. “As a citizen, I felt that I was different because of my own beliefs.”</p><p>Galloway noted that refusing to participate wasn’t really an option. She recounted how she declined to stand for the prayer on one occasion and had “100 eyes looking at me. It singles you out.”</p><p>Stephens discussed some of the harassment she received over the case. Her property was vandalized twice, and she received a note telling her to move out of town. She called for the town to go back to the moment of silence it once used to open meetings, remarking, “We all need to be included.”</p><p>(The photo depicts Susan at the microphone. Linda is to the right, with Laycock upper left.)</p><p>AU’s Khan, who guided the case through the lower courts, also spoke.</p><p>“Under the town’s policy, a local government can expect its citizens to kneel in prayer that promises eternal hellfire to religious minorities,” Khan said. “That can’t possibly be constitutional. We’re here today to remind the highest court in the land that it is not.”</p><p>A decision in this case isn’t likely before June. I won’t make any predictions. I can tell you this: As I listened to Susan and Linda recount their experiences this morning outside the court, I have never been prouder of the work Americans United does – and I felt truly fortunate to be part of a team of fantastic people.</p><p>Many of you helped bring this case before the highest court in the land because you donated money, spoke out and undertook other activities to defend the church-state wall. Thank you.</p><p>We do this work for one reason: to help people secure the rights guaranteed to them in the U.S. Constitution. No matter how this case turns out, we will keep fighting. Our vision is of a day when government has no opinion on theology. We work toward a time when the state leaves decisions of when, how and if to pray to each citizen as guided by conscience. We envision a society where no branch of government presumes to meddle in the inviolable right of conscience held by its people.</p><p>That is our goal. It’s a worthy one. We’re proud of it, and, win or lose in Greece, we intend to keep working toward it.</p><p> </p><p><a href="http://www.scotusblog.com/2013/11/argument-recap-marshs-demise-or-its-renewal/">Read a Recap of Arguments from Scotusblog here.</a></p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/prayer-at-government-events-and-legislative-meetings">Prayer at Government Events and Legislative Meetings</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/douglas-laycock">Douglas Laycock</a></span>, <span class="field-item"><a href="/tags/barry-lynn">Barry Lynn</a></span>, <span class="field-item"><a href="/tags/ayesha-khan">Ayesha Khan</a></span>, <span class="field-item"><a href="/tags/greece">Greece</a></span>, <span class="field-item"><a href="/tags/alliance-defending-freedom">Alliance Defending Freedom</a></span>, <span class="field-item"><a href="/tags/thomas-hungar">Thomas Hungar</a></span>, <span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span>, <span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span>, <span class="field-item"><a href="/tags/anthony-kennedy">Anthony Kennedy</a></span></div></div>Wed, 06 Nov 2013 19:36:40 +0000Rob Boston9132 at http://www.au.orghttp://www.au.org/blogs/wall-of-separation/high-noon-at-the-high-court-justices-hear-arguments-in-town-of-greece-v#commentsCourtroom Drama: Supreme Court Debates Limits Of The ‘Ministerial Exception’ http://www.au.org/blogs/wall-of-separation/courtroom-drama-supreme-court-debates-limits-of-the-%E2%80%98ministerial-exception%E2%80%99
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">The U.S. Supreme Court is back in session. </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>The first Monday in October was just two days ago, and if you’re a law junkie, you know what that means: The U.S. Supreme Court is back in session.</p>
<p>This morning, the high court <a href="http://www.google.com/hostednews/ap/article/ALeqM5gzHxLEaZZSlBz4OpcgiAzmLbsXPQ?docId=c3cdf74d75fa47c999a7f68660214a09">heard oral arguments</a> in the only church-state case on its docket so far. The case, <em>Hosanna Tabor Evangelical Lutheran Church v. EEOC</em>, deals with some fairly complex issues but is definitely worth keeping an eye on.</p>
<p>I was in the high court’s press galley to observe the spirited hour-long argument. As a non-lawyer, I won’t pretend that I understood every legal nuance, but one thing’s for sure: This case has stirred up passions on both sides.</p>
<p>For decades, courts have recognized something called the “ministerial exception.” In a nutshell, this judge-crafted rule gives houses of worship an exemption from the civil rights laws that every other group must follow. Now questions are being raised about how broad this exemption should be. Does it give churches an absolute right to fire pastors for any reason under the cover of religious liberty? Does it extend to other types of church employees? Who exactly qualifies as a “minister” anyway?</p>
<p>The case was brought by a Michigan woman, Cheryl Perich, who was fired from her job at Hosanna Tabor after being diagnosed with narcolepsy. Perich consulted a doctor and was able to control the condition with medication, but the school said it didn’t want her back. She sued, claiming discrimination.</p>
<p>University of Virginia law professor Douglas Laycock argued for the church. Laycock had barely begun speaking before Justice Ruth Bader Ginsburg demanded to know if Perich had served in a ministerial capacity. Justice Sonya Sotomayor then jumped in, peppering Laycock with questions about how the government should balance religious liberty rights with society’s interest in persuading people to report instances of child abuse.</p>
<p>Leondra Kruger of the U.S. Solicitor General’s Office and Walter E. Dellinger of Duke University’s School of Law, argued for the EEOC. The justices were just as hard on Kruger and Dellinger. At one point, Justice Antonin Scalia, who’s never one to be reticent, called the government position in this case “extraordinary.”</p>
<p>After the argument, I went outside to the court portico where various parties were holding forth in a media scrum – among them Americans United Executive Director Barry W. Lynn. Perich was on hand and spoke briefly. She said, “My situation has nothing to do with religion.” Perich noted that she got sick but then got better and wanted to return to work.</p>
<p>“Their response was to fire me,” Perich told the media. “I can’t fathom how the Constitution could be construed to deny me my civil rights. I hope the court agrees.”</p>
<p>A case like this, which lacks the emotional wallop of a school prayer battle or a courtroom duel over a Ten Commandments display, can get overlooked. That’s a shame, because it has the potential to affect lots of people. Religious organizations have a wide reach in American society. They employ people at colleges, hospitals, social service agencies and even retail establishments like book stores. A broad exception could leave many of these people without the basic civil rights protections that most workers take for granted.</p>
<p>Americans United takes what we believe is a sensible middle-ground course. When it comes to theology, a house of worship can hire and fire as it sees fit. As AU’s Lynn said today, “A Baptist church shouldn’t have to consider a Buddhist monk as its pastor.”</p>
<p>But granting religious institutions a sweeping right to fire people for reasons unrelated to religion goes too far. If a department store fired you because of your sex or skin color (or because you alerted authorities to illegal activity) you would have the right to bring your case into court. The same standard should apply to employees of religious organizations.</p>
<p>So how will the court rule? I’ve been covering church-state cases at the high court since 1988 and have learned not to make predictions. The justices are capable of surprising us from time to time. Suffice it to say that AU will watch this case closely and will report on the fallout.</p>
<p>In the meantime, if you want to learn more about the case and AU’s position on it, I recommend the <a href="http://www.au.org/media/church-and-state/archives/2011/10/hosanna-in-the-highes.html">latest issue</a> of <em>Church &amp; State</em>.</p>
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</div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/cheryl-perich">Cheryl Perich</a></span>, <span class="field-item"><a href="/tags/douglas-laycock">Douglas Laycock</a></span>, <span class="field-item"><a href="/tags/eeoc">EEOC</a></span>, <span class="field-item"><a href="/tags/hosanna-tabor-evangelical-lutheran-church">Hosanna Tabor Evangelical Lutheran Church</a></span>, <span class="field-item"><a href="/tags/leondra-kruger">Leondra Kruger</a></span>, <span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span>, <span class="field-item"><a href="/tags/walter-dellinger">Walter Dellinger</a></span></div></div>Wed, 05 Oct 2011 18:19:49 +0000Rob Boston6161 at http://www.au.orghttp://www.au.org/blogs/wall-of-separation/courtroom-drama-supreme-court-debates-limits-of-the-%E2%80%98ministerial-exception%E2%80%99#comments